IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SEAN WILLIAM BECK,

Plaintiff,

vs. Civil Action 2:11-CV-155

Magistrate Judge King

MUSKINGUM COUNTY, OHIO, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court, with the consent of the parties

pursuant to 28 U.S.C. § 636(c), on Defendants’ Motion for Attorney’s

Fees and Expenses (“Defendants’ Motion”), Doc. No. 37. Defendants

seek an award of attorneys’ fees and costs, under Federal Rule of

Civil Procedure 54 and 42 U.S.C. § 1988(b), in the amount of

$30,135.55. Plaintiff opposes Defendants’ Motion. Response to Motion

for Attorney’s Fees (“Plaintiff’s Response”), Doc. No. 38. Defendants

have filed a reply. Reply in Support of Defendants’ Motion for

Attorney’s Fees and Expenses, Doc. No. 39. For the reasons that

follow, Defendants’ Motion is DENIED. 

I. Background

Plaintiff Sean Beck, an inmate currently incarcerated at the

Bureau of Prisons Facility in Terre Haute, Indiana, brought this civil

rights action under 42 U.S.C. § 1983 against defendants Muskingum

County, Ohio, Muskingum County Sheriff Matt Lutz, and Muskingum County

Sherif Detective Amy Thompson. Plaintiff alleged that defendant

Thompson improperly shared personal information with Britton Beck,

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plaintiff’s former wife, and improperly shared information gained in

connection with plaintiff’s criminal prosecution while testifying at

his divorce hearing.

Plaintiff was a Zanesville, Ohio, police officer from 2003 until

his arrest in 2007. Complaint, Doc. No. 3, ¶¶ 12-14. In his

unverified Complaint, plaintiff alleged that his phone calls were

recorded during his incarceration at the Franklin County jail and that

the recordings were made available to defendant Thompson, who was

investigating plaintiff at the time on an unrelated matter. Id. at ¶¶

15, 18-19. Defendant Thompson allegedly shared this information with

Britton Beck and used “her position as a Detective to assist Britton

Beck in her divorce proceedings.” Id. at ¶ 31. Defendant Thompson

testified for Britton Beck at the latter’s February 24, 2009 divorce

hearing. Id. at ¶ 32. Defendant Thompson also informed Britton Beck

“that the Federal Bureau of Investigation . . . collected eight

hundred dollars from Plaintiff when he was arrested.” Id. at ¶ 36. 

Plaintiff alleges that defendant Thompson shared this information

with, and testified for, Britton Beck even after she was told by

Assistant United States Attorney David Devillers and FBI Special Agent

Drew McConnahey to stop sharing information with Britton Beck. Id. at

26-28. According to plaintiff, these actions constituted a

“continuing violation” of his civil rights. Id. at 37. 

Plaintiff filed this action on February 22, 2011. Complaint, p.

1. Defendants did not file a motion to dismiss but, on March 23,

2012, defendants filed a motion for summary judgment, Defendants’

Motion for Summary Judgment, Doc. No. 30, which was granted on October

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10, 2012. Opinion and Order, Doc. No. 35, p. 11. In granting summary

judgment, the Court concluded:

In short, defendants are immune from liability for all claims

arising out of defendant Thompson’s testimony at plaintiff’s

divorce hearing. To the extent that plaintiff’s claims are

unrelated to defendant Thompson’s testimony, plaintiff has not

produced evidence of the denial of a constitutional right.

Defendants are therefore entitled to judgment as a matter of

law. 

Id. at pp. 10-11. 

Defendants, as the prevailing parties,1 now seek an award of

attorneys’ fees and costs in the amount of $30,135.55. Defendants’

Motion, p. 1. 

II. STANDARD 

“Ordinarily, under the American Rule, . . . each party bears its

own attorney fees.” Griffin Indus., Inc. v. U.S. E.P.A., 640 F.3d

682, 685 (6th Cir. 2011) (quoting BDT Prods., Inc. v. Lexmark Int'l,

Inc., 602 F.3d 742, 752 (6th Cir. 2010)). However, a court may, in

its discretion, allow the prevailing party (other than the United

States) in a section 1983 civil rights action, a reasonable attorney’s

fee as part of costs. 42 U.S.C. § 1988(b). However, an award of

attorney fees against a losing plaintiff in a civil rights action is

“‘an extreme sanction, and must be limited to truly egregious cases of

misconduct.’” Cheolas v. City of Harper Woods, 467 F. App’x 374, 382-

83 (6th Cir. 2012) (quoting Garner v. Cuyahoga Cty. Juvenile Court,

554 F.3d 624, 635 (6th Cir. 2009)). “A prevailing defendant should

only recover upon a finding by the district court that ‘the

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 Plaintiff concedes that defendants are prevailing parties for

purposes of 42 U.S.C. § 1988. See Plaintiff’s Response, p. 2.

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plaintiff's action was frivolous, unreasonable, or without foundation,

even though not brought in subjective bad faith.’” Riddle v.

Egensperger, 266 F.3d 542, 547 (6th Cir. 2001) (quoting Wayne v. Vill.

of Sebring, 36 F.3d 517, 530 (6th Cir. 1994)). “To determine whether

a claim is frivolous, unreasonable or groundless, the court must

determine plaintiff's basis for filing the suit.” Id. at 548 (citing

Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985)). The

United States Supreme Court has warned, however, that district courts

must “resist the understandable temptation to engage in post hoc

reasoning by concluding that, because a plaintiff did not ultimately

prevail, his action must have been unreasonable or without

foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, at

421-22 (1978). 

III. Discussion

Plaintiff’s claims were inadequate to withstand a motion for

summary judgment. See Opinion and Order, Doc. No. 35. They were not,

however, frivolous or unreasonable. Defendants argue that plaintiff

“filed his unverified Complaint despite the fact that the applicable

law and the evidence in support of his claimed wrongdoing meant that

his Complaint was frivolous, unreasonable, and without foundation.” 

Defendants’ Motion, p. 4. Defendants point out that plaintiff offered

no admissible evidence to support his claims and that the Court, in

granting summary judgment, concluded that plaintiff had failed to

establish the deprivation of any constitutional right. Id. at p. 3. 

Neither the award of summary judgment to defendants nor

plaintiff’s failure to produce admissible evidence equate with a

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determination that plaintiff’s claims were without foundation when the

Complaint was initially filed. See Riddle, 266 F.3d at 550. See also

Fed. R. Civ. P. 11(b)(3) (explaining that the evidentiary foundation

of claims may be fleshed out through discovery). Although

insufficient to create a genuine issue of material fact, plaintiff did

offer some evidence in support of his claims. See Response to Motion

for Summary Judgment, Doc. No. 33, p. 3. It is significant, too, that

defendants did not “use[] Rule 12(b)(6) to narrow the claims at the

onset of the case, rather than engaging in extensive discovery in

order to obtain summary judgment.” Riddle, 266 F.3d at 550

(quotations omitted). See also Cheolas, 467 F. App’x at 382-83;

Lowery v. Jefferson Cty. Bd. of Educ., 586 F.3d 427, 438 (6th Cir.

2009) (stating that a party’s failure to file a motion to dismiss or a

motion for summary judgment suggests that the complaint was not

frivolous).

“The goal of the § 1988(b) provision is to incentivize litigation

of meritorious civil rights violations, while deterring the filing of

frivolous claims.” Cheolas, 467 F. App’x at 383. Under the

circumstances, the Court, in its discretion, declines to characterize

plaintiff’s Complaint as so frivolous or groundless as to justify an

award of defendants’ attorneys’ fees under 42 U.S.C. § 1988. 

Defendants’ Motion for Attorney’s Fees and Expenses, Doc. No. 37,

is therefore DENIED. 

November 16, 2012 s/ Norah McCann King 

 Norah McCann King

United States Magistrate Judge

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